Tuesday, September 22, 2015

On Monday, September 8th, Quizno’s released its
latest parody ad, The
Burn Trials; this time parodying the Burning Man Festival. While it was well-received by just about
everyone, including members of the Burning Man community, the organization that
owns and operates Burning Man has threatened
to sue Quizno’s for misappropriation of its intellectual property.

Burning Man
is an art and music festival held each year in the Black Rock Desert of
Northern Nevada. The festival is surrounded by a strong international community
of “burners” who have either attended the main festival or one of its many off-shoot
regional festivals. Burning Man also promotes a core set of 10
principles in all of its projects and asks attendees to carry those
principles with them out into the rest of the world. One of those principles is Decommodification;
a rejection of commercial, for-profit transactions and advertising. Quizno’s using the Burning Man name and image
to sell sandwiches directly conflicts with the principle of Decommodification.

The parody ad was put out by Toasty.tv which is a marketing project owned by
Denver-based Quizno’s that creates high-quality parody videos, usually mixing
two well-known properties together. In The Burn Trials Quizno’s combined the
plot and characters from The Maze Runner movie franchise with the setting of
the Burning Man festival. The video itself is a sharp critique of many cultural
controversies surrounding Burning Man in recent years, including the growing prevalence
of ultra-rich “plug and
play” camps where individuals can pay thousands of dollars to have
everything provided for them at the festival, including a plane ride in and
servants, thus violating several of the ten principles

When the Burning Man organization threatened to
sue Quizno’s, many “burners” and non-burners alike took it as Burning
Man trying to shut down what may be an unflattering view of its festival. However, most of these people have little
understanding of the law and why it is important of Burning Man to protect its
intellectual property.

Does
Burning Man even have a case? Many naysayers have pointed out that parody
is commonly protected under the “fair use” exception to copyright or trademark
infringement. However, there are four factors
courts use to determine if a parody falls under the “fair use” exception; (1)
the nature and character of the use; (2) the nature of the original work; (3)
the amount and substantiality of the portion used in relation to the original
work as a whole; and (4) the effect of the use on the value or potential market
of the original work.

Where Burning Man likely has a case is under the
first factor. The nature and character of use considers whether the parody’s
purpose is of a commercial nature. Parodies used primarily for commercial
purposes are automatically suspect.
Here, the parody’s primary
purpose is to sell Quizno’s sandwiches.
This, combined with the other three factors also likely weighing at
least slightly in Burning Man’s favor, gives Burning Man strong legal standing
to challenge Quizno’s in court for infringing its intellectual property.

Even if Burning Man does not win this battle,
enforcing is intellectual property rights is crucially important. If Burning
Man let this one slide, it could jeopardize its intellectual property rights
altogether, thus opening the door for companies from all over to use its name
and image to sell products. Even though
The Burn Trials is hilarious and well-done, if Burning Man failed to fight
Quizno’s on its misappropriation, we could eventually see something far worse
(think car insurance ad in Black Rock City).

A win for New Jersey not only would have brought in
tremendous money, but also would have opened the floodgates for other states to
follow suit. But since the Court ruled against the state, it is reasonable to
expect that no other state has a chance to make its own case. However, strangely,
the Court essentially outlined exactly how other states should proceed in
challenging PASPA in its decision. “‘We
agree that, had [New Jersey’s] 2014 Law repealed all prohibition on sports
gambling,”—i.e. repealed not just the bans on casinos and racetracks—“‘we
would be hard-pressed…to find an ‘authorizing by law’ in violation of PASPA.’”
Thus, any state that wishes to repeal its own ban on sports betting can do so
in the manner the Court has recommended. It is unclear why the Court would
include a blatant loophole, especially when such a comment was unnecessary to
explain their rejection of New Jersey’s proposition.

The sports world is, in large part (if not virtually
completely), controlled by money. Sports betting is inextricably linked with
tremendous money. As such, we may see the day when the guarantee of the money
that comes with sports betting outweighs the possibility of corrupt athletes
and coaches. Particularly if other major sports leagues commissioners join NBA’s
Adam Silver in his support for nationwide legal sports betting, a complete
overhaul of sports betting, and the nature of sports in general, may be closer
than imagined despite this recent ruling.